Rifat vs Abdul Sattar and Others

J.P. Singh, J.—Abdul Sattar and Karamat Ali were admitted to Bail by learned Sessions Judge, Jammu in FIR No. 1/2012 registered at

Police Station Janipur, Jammu under Sections 363/376 RPC. The prosecutrix has approached this Court through her father seeking cancellation of

their Bail. I have perused the material placed on records, considered the submissions of the learned Senior Counsel appearing for the prosecutrix

and those advanced by Ms. Monica Kohli appearing for the respondents-accused. Learned Sessions Judge has admitted the respondents to Bail

finding that the investigation was almost complete and the statutory period of remand was over. He was of the view that the offence alleged to have

been committed being neither punishable with death nor imprisonment for life and alternate punishment having been provided therefor, the statutory

bar enacted by Section 497 Cr.P.C. may not be attracted. Therefore, finding the accused to be permanent residents of the State, having deep

roots in the Society, he directed their admission to bail dismissing prosecutions apprehension that they would influence the investigation. The age of

the prosecutrix, according to the material placed on records was about 15=years at the time when she was kidnapped and thereafter repeatedly

gang raped. The Radiologist has certified her age more than 15 years but less than 16 years. The Statement of the prosecutrix recorded u/s 164A

Cr.P.C. demonstrates her repeated gang rape by five persons. The Medical Report too suggests evidence of recent sexual intercourse with the

prosecutrix.

In terms of the provisions of Section 376 RPC. punishment for rape may not be less than seven years but may extend to imprisonment for life.

The learned Sessions Judges Order reveals that he had proceeded to admit the respondents to bail without considering, still less appreciating, the

seriousness of the charge against them and the punishment provided therefor in Section 376 RPC. He appears to have been influenced by the fact

that the investigation being almost over, the respondents could be considered for their release on bail as there was no legal impediment

contemplated therefor u/s 497 Cr.P.C.

True it is, that Section 497 Cr.P.C. confers discretion for admitting the accused to bail in cases other than those where there appear reasonable

grounds for believing that he has been guilty of offence punishable with death or imprisonment for life; but that would not, however, mean that in all

other cases where the punishment provided for offence(s) is not death or imprisonment for life, bail may be granted, as a matter of course,

regardless of the seriousness of charge or likelihood of accused impeding the course of investigation and fair trial. Looking to the seriousness of

allegations appearing against the accused in the prosecutrix Statement recorded u/s 164-A Cr.P.C. the discretion exercised by the learned

Sessions Judge does not appear to have been exercised judiciously in that, minority of the prosecutrix, nature of the accusation, severity of the

punishment in case of conviction, besides reasonable apprehension of accused tampering with the prosecution evidence and threat to the

complainant do not appear to have been kept in view while exercising the discretion. The apprehension expressed by the prosecution of

respondents impeding the course of justice too has been rejected for no good reasons.

In cases involving rape of minors, the Judicial Officers and Sessions Judges are required to exercise needed care and caution in exercising

discretion to consider release or otherwise of the accused on bail pending investigation and trial, lest the discretion so exercised affects adversely

the societal interests, investigation and fair trial. The decision making process employed by the learned Sessions Judge in considering respondents

admission or otherwise to bail, without keeping in view the prosecutrix minority, seriousness of allegations of gang rape against the accused, being,

therefore, faulty, his order of admitting the respondents to bail cannot be sustained and the error committed, therefore, needs to be corrected to

prevent the abuse of the process of Court.

The respondent learned counsels submission that the order of respondents release on bail being interlocutory, the High Court cannot exercise its

revisional jurisdiction to examine the legality or propriety of the learned Sessions Judges order, projected on the basis of observations made by the

Hon'ble Supreme Court of India and various other High Courts of the Country in the judgments referred to, may not be relevant in the present

case, in that, once the order of the learned Sessions Judge is found to have been passed without following the principles which the Magistrates and

Sessions Judges are required to keep in view while exercising judicial discretion in passing orders under Sections 497 and 498 of the Code of

Criminal Procedure, the bar enacted by Section 435 (2) would not come in the way of exercise of jurisdiction u/s 561-A Cr.P.C. to prevent abuse

of the process of Court to secure the ends of justice. Learned counsels another plea that the prosecution case against the respondents had been

fabricated to implicate them when they were not involved in the occurrence and were not present at the place of occurrence, is a plea which cannot

be taken note of at this stage in view of the material placed on records which indicate their involvement in the commission of offences punishable

under Sections 363/376 RPC.

The discretion exercised by a Magistrate or Sessions Judge in considering the admission or otherwise of the accused to bail, may not be

ordinarily interfered with by the High Court; but where the process employed by the Judicial Authority is found faulty, for, not taking into

consideration the parameters required, under law, to be kept in view while considering the release or otherwise of an accused on bail, it rather

becomes the duty of the High Court to correct the error to prevent miscarriage of justice.

I am supported in taking the above view by what was held by their lordships of Hon'ble Supreme Court of India in Puran Vs. Rambilas and

Another etc. etc., where while dealing with the issue it was held as follows:-

Further, even if it is an interlocutory order, the High Courts inherent jurisdiction u/s 482 is not affected by the provisions of Section 397(3) Cr.P.C.

That the High Court may refuse to exercise its jurisdiction u/s 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied

that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is

unjustified.

For all what has been said above, the order passed by the learned Sessions Judge admitting the respondents to bail cannot, therefore, be

sustained. It is, accordingly, set aside. The respondents are directed to be taken into custody for their production before the Court in secession of

their case. Registrar Judicial to issue warrant of arrest.

Nothing said in this order to be construed as impediment for consideration of respondents bail plea afresh during the trial.